McInnis v. Duncan
2012 U.S. App. LEXIS 21107
| 7th Cir. | 2012Background
- Mclnnis, a non-licensed law-school graduate, sued his employer, the Department of Education, alleging Whistleblower Protection Act and Title VII violations after a promotion denial and allegedly inaccurate performance appraisal.
- The agency moved to dismiss for failure to exhaust the Whistleblower claim because OSC was not provided the required submission; district court scheduled hearings and cautionary warnings were issued.
- Mclnnis amended the complaint but failed to appear at the August 30, 2011 hearing; no transcript exists, but the court indicated the prior dismissal motion was moot in light of the amendment.
- A November 3, 2011 status hearing was set with a warning that failure to appear could lead to dismissal for want of prosecution; Mclnnis again failed to appear.
- During the November 3 proceeding, the court recalled the case, learned of communications about continuance, and ultimately dismissed the action with prejudice for failure to prosecute.
- Twenty-nine days later, Mclnnis’s counsel filed a notice of appeal; no motion to reconsider was filed in the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was dismissal for failure to prosecute an abuse of discretion? | Mclnnis argues dismissal was improper given disputed continuance and pro se status. | The district court warned and repeatedly sought appearance; contumacious conduct supported dismissal. | Not an abuse of discretion; dismissal affirmed. |
| Should lesser sanctions have been considered before dismissal? | The court failed to consider less severe penalties before dismissing. | Discretion permitted dismissal without progressive discipline in this context. | District court did not abuse discretion; no mandatory lesser sanctions required. |
| Does pro se status require greater leniency in these circumstances? | Pro se status should yield more leniency and accommodation. | Pro se litigants must follow court rules; status does not compel leniency when conduct is neglectful. | Pro se status did not compel greater leniency; dismissal upheld. |
Key Cases Cited
- Kasalo v. Harris & Harris, Ltd., 656 F.3d 557 (7th Cir.2011) (clear record of delay or contumacious conduct required for dismissal)
- Gabriel v. Hamlin, 514 F.3d 734 (7th Cir.2008) (necessity of contumacious behavior for dismissal as a sanction)
- Fischer v. Cingular Wireless, LLC, 446 F.3d 663 (7th Cir.2006) (warning requirement for pro se plaintiffs before dismissal)
- Ball v. City of Chicago, 2 F.3d 752 (7th Cir.1993) (preference against automatic dismissal for single missed appearance)
- Alston v. Deutsch Borse, AG, 80 Fed.Appx. 517 (7th Cir.2003) (pro se status and sanctions considerations)
- Malone v. Foster Wheeler Constructors, Inc., 21 Fed.Appx. 470 (7th Cir.2001) (sanctions and pro se considerations)
- Dax v. Am. Bd. of Psychiatry and Neurology, Inc., 10 Fed.Appx. 364 (7th Cir.2001) (sanctions for failure to comply with court orders)
- Swarm v. Siemens Bus. Communications Sys., Inc., 9 Fed.Appx. 512 (7th Cir.2001) (sanctions and failure to appear)
- Halas v. Consumer Servs., Inc., 16 F.3d 161 (7th Cir.1994) (detailed contexts of dismissal as sanction)